Butler v Yancoal Australia Pty Ltd

[2022] NSWDC 734

District Court

New South Wales

Medium Neutral Citation:	Butler v Yancoal Australia Pty Ltd [2022] NSWDC 734
Hearing dates:	14 December 2022
Date of orders:	14 December 2022
Decision date:	14 December 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption. By consent, orders in accordance with short minutes of order, which I initial and place with the papers.
Catchwords:	COMPENSATION – REDEMPTION – APPROVAL OF COURT – Compensation for degenerative disc disease in the lumbar spine and hip replacement.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Darren Butler Defendant – Yancoal Australia Pty Ltd
Representation:	Plaintiff – Mr Benson, D. Defendant – Mr McMahon, S.
File Number(s):	2022/00162004
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: Currently before me is an application for redemption, in the sum of $155,000. The Plaintiff suffers from degenerative disc disease in his lumbar spine, indeed, throughout his spine. The Plaintiff’s major compensable problem is the condition of his low back, albeit that he failed to report a number of injuries over the years. The most recent injury, which he reported as being compensable, was in January 2021. Medical records before me indicate that the history of low back complaint goes back to 12 May 2016, although the first mention of any injury appears to indicate that it may have happened at home. However, I can accept that the Plaintiff’s work as a plant operator in an open cut mine could have made a low back condition worse.

2. The redemption application is complicated by the fact that in 2021, the Plaintiff underwent bilateral hip replacement surgery, and that has not been paid for by Coal Mines Insurance, the insurer of the Defendant. If the condition of the Plaintiff’s hips were work-related, then the cost of that treatment would be enormous, and the sum proposed for redemption would be quite inadequate.

3. I have carefully read through the medical evidence. It would appear that the Plaintiff’s problems with his hips came to light after he complained about low back pain. His general practice records indicate that on 22 January 2021, the Plaintiff reported that he had had lower back pain on the right-hand side for almost four years, and was known to have osteoarthritis and disc disease, and had undergone two cortisone injections into his low back in 2017. However, recently there was pain over the left side after lifting some heavy objects at home, and whilst operating bulldozers with the vibrations and constant sitting.

4. The Plaintiff came under the care of a number of doctors for his low back, but was also referred to Dr Jorgen Hellman, an orthopaedic surgeon specialising in hip and knee joint replacement surgery. The Plaintiff first saw Dr Hellman on or about 10 February 2021. Dr Hellman’s history contains this:

“Over the last couple of months he has had significant groin to buttock pain on the left side. He is now largely incapacitated by this pain and hasn’t been able to work for the last few weeks. He works in the coal mines driving bulldozers. His imaging has been reviewed by Dr Rob Kuru who doesn’t believe his back is contributing and thinks it is mostly his left hip.”

5. Dr Hellman examined the Plaintiff and confirmed that he had a very irritable left hip. Dr Hellman discussed with the Plaintiff the pros and cons of undergoing hip replacement surgery, and it was proposed that that be done at the Lingard Private Hospital three weeks after that examination. On 20 April 2021, Dr Hellman wrote to the Plaintiff’s general practitioner that it was now six weeks after the Plaintiff had undergone left hip replacement surgery. The Plaintiff told Dr Hellman that he was absolutely delighted with the condition of his left hip. He did not have any problems with the wound healing. On examination and radiologically, things look very good.

6. However, by that stage, the Plaintiff’s right hip was very irritable and eventually right hip replacement surgery was performed by Dr Hellman some six weeks prior to 13 July 2021, when Dr Hellman reported that the Plaintiff was doing very well, and as far as his hips were concerned, he could do whatever he liked with no restrictions. Dr Hellman’s reports indicate that the problem with the Plaintiff’s hips is constitutional. In a note of 7 September 2022, Dr Hellman said the Plaintiff was suffering from degenerative osteoarthritis of both hips, which required staged bilateral hip replacement surgery. The left hip was replaced on 4 March 2021, and the right hip on 27 May 2021.

7. Dr Hellman was of the view that the Plaintiff’s hip condition was due solely to genetic predisposition. He went on to say that in his opinion, jarring of the body, and vibration, whilst driving plant in open cut mines could not contribute in any way to the hip arthritis. That opinion is confirmed by Dr Neil McGill, a consultant rheumatologist retained by the Defendant and by Dr David Maxwell, an orthopaedic and spinal surgeon retained by the Defendant. The only person who says otherwise is Professor Y.A.E. Ghabrial, but his opinion is quite inconsistent with that of the treating doctor and the other specialists.

8. Furthermore, the Plaintiff’s symptom complex resulting from his hip problems was essentially of groin pain, and that was not a feature of the Plaintiff’s condition at any time that he sought treatment for his back condition. In the circumstances, I am not persuaded on the balance of probabilities that the need for the Plaintiff’s hip replacement surgery was in any way related to the kind of work the Plaintiff did as a coal miner.

9. In those circumstances, I proposed redemption is adequate. I approve the redemption. By consent, orders in accordance with short minutes of order, which I initial and place with the papers.

Decision last updated: 27 April 2023